Farming and Eating

15 Pages·2017·0.17 MB·English

by  Margot J. Pollans

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Volume 13 Number 1 Article 15
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Margot J. Pollans
Pace University
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Pollans, M. J. (2018). Farming and Eating. Journal of Food Law & Policy, 13(1). Retrieved from
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Farming and Eating

Margot J. Pollans(cid:13)(cid:13)

“The cities have not made the country. On the contrary, the
country has compelled cities. Without the former the latter
could not exist. Without farmers there could be no cities.”1

The infrastructure of food in modern society—
refrigeration, food processing, transportation—and the global
scale of the “hinterland” obscure the complex, mutually
dependent relationship between cities and rural lands. Links
remain, however. Most cities no longer rely on proximate rural
lands for their food supply. They do depend, however, on distant
agricultural lands where, despite a recent upsurge in urban
agriculture, the vast majority of food is produced. Likewise,
farmlands remain dependent on urban areas—where the vast
majority of food customers live.

This interdependence generates a strong mutual interest
between urban and agricultural communities. The long-term
viability of the agricultural sector is essential both for rural
livelihoods and for sustenance. Threats to this viability include
climate change-induced extreme weather (including drought,
flooding, heat waves, freezes, etc.), invasive species, declining
soil health, and loss of pollinators, among others.2

(cid:13) Assistant Professor, Elisabeth Haub School of Law at Pace University. Thanks to
Lily Baum Pollans, Noa Ben-Asher, David Cassuto, Nate Rosenberg, Gerald Marzorati,
Barry Friedman, and Lee Miller for their comments on this draft. And thanks to Michael
McConnell and Sarah Main for excellent research assistance.
1. WILLIAM CRONON, NATURE’S METROPOLIS, 97 (1991) (quoting a Chicago
resident from 1893).
2. See Sonja J. Vermeulen et al., Climate Change and Food Systems, 37 ANNUAL
REV. ENVIRON. RESOUR. 195, 202-08 (2012) (providing a survey of literature evaluating
potential consequences of climate change for agriculture); Olivier de Schutter, Agroecology
and the Right to Food, Report presented at the 16th Session of the United Nations Human
Rights Council [A/HRC/16/49] at 3 (concluding that “increasing food production to meet
future needs, while necessary, is not sufficient. . . . [S]hort-term gains will be offset by
long-term losses if it leads to further degradation of ecosystems, threatening future ability
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Modern food production practices create a second direct
link between urban and rural areas. As I have discussed
elsewhere, farming practices generate environmental harms that
impose a direct cost on both urban and rural populations.3
Drinking water is the best example of this.4 All across the
country, agricultural pollution such as arsenic, nitrates, and
microbial contaminants migrate from fields and feedlots into
source water for municipal water supplies and private wells.
This contamination threatens public health and drives up
drinking water costs.5 The weight of these externalities is also
borne by agricultural communities, including farm workers,
farm owners and operators, and other members of rural
communities.6 These two threads—shared dependence on
agricultural productivity and shared weight of agriculture’s
externalities—remind us that the food system is a connected
whole.

Despite these common threads, the dominant perception in
the United States today is that urban and rural agricultural
interests are in opposition and are possibly even mutually
exclusive. This perception is false. This essay argues that the “us
versus them” rhetoric that dominates food and agriculture policy
today drives a wedge between farmers and food consumers.
Together, farmers and food consumers could form a powerful
coalition to challenge the true obstacle to sustainable and
equitable food production: concentration of market and political

to maintain current levels of production”).
3. Margot J. Pollans, Drinking Water Protection and Agricultural Exceptionalism,
77 OHIO ST. L.J. 1195 (2016).
4. But it is not the only example. Others include contribution to smog in urban and
rural areas. See, e.g., Nate Berg, Why Does California’s Central Valley Have Such Bad Air
Pollution, CITY LAB (Sept. 28, 2011), http://www.citylab.com/weather/2011/09/behind-
pollution-californias-central-valley/207/;. Agriculture also makes significant contributions
to global greenhouse gas emissions, totaling around eight percent in the U.S. EPA, Draft
Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2015, at 5-1 (Feb. 15, 2017),
https://www.epa.gov/sites/production/files/2017-02/documents/2017_complete_report.pdf;
Sonja J. Vermeulen, Bruce M. Campbell, & John S.I. Ingram, Climate Change and Food
Systems, 37 ANNU. REV. ENVIRON. RESOUR.195 (2012).
5. Pollans, supra note 3, at 1221-23.
6. Doug Gurian-Sherman, CAFOs Uncovered: The Untold Costs of Confined Animal
Feeding Operations, UNION OF CONCERNED SCIENTISTS, 5 (April 2008),
https://www.organicconsumers.org/sites/default/files/cafos_uncovered.pdf.
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power elsewhere along the food chain.7
Even within the food movement, demonization of the
agriculture industry is common. In the last decade, the food
movement has identified concerns with a long list of production-
side food system problems—the prevalence of unhealthy
processed foods and their public health impacts, especially
among children; exploitative labor practices throughout the
supply chain; inhumane animal welfare practices; genetic
modification; and a host of environmental problems that result
from extensive monoculture.8 Using a combination of market
pressure and political advocacy, various fronts of the food
movement have achieved commitments for reduced use of
animal antibiotics, better living conditions for pigs and chickens,
mandatory composting, soda taxes, and much more.9 As
consumer focus on food has increased, environmental
organizations have also entered the fray, launching food and
agriculture programs that seek to address agricultural
pollution.10

The food movement’s best-known leaders have reflected
this critical attitude toward the food industry. For example, in an
op-ed in the New York Times, Mark Bittman wrote: “Many food

7. This includes the agricultural input (pesticides, seeds, fertilizer, farm equipment),
food distribution and processing, food retail, and restaurant sectors.
8. Michael Pollan, Food Movement, Rising, N.Y. BOOKS (June 10, 2010),
http://www.nybooks.com/articles/2010/06/10/food-movement-rising/.
9. Jennifer Hackett, Subway Joins Other Fast-Food Giants to Cut Back on
Antibiotics, SCIENTIFIC AMERICAN, (Oct. 28, 2015),
https://www.scientificamerican.com/article/subway-joins-other-fast-food-giants-to-cut-
back-on-antibiotics/; Cal. Health & Safety Code § 25990 (Deering 2016) (animal living
conditions); Prevention of Farm Animal Cruelty Act, 2016 Mass. Acts 333; Mandatory
Recycling and Composting Ordinance, S.F., Cal. Ordinance 100-09 (June 9, 2009); 310
Mass. Code Regs. 19.017(3) (2016) (food waste ban); Philadelphia, PA, Code § 19-4100
(2016) (soda tax); Oakland, Cal., Ordinance 86161 (May 3, 2016) (soda tax).
10. Peter Lehner, Fixing Our Broken Food System, EARTHJUSTICE BLOG (Mar. 25,
2016), http://earthjustice.org/blog/2016-march/fixing-our-broken-food-system. Sierra Club,
NRDC, and other environmental organizations have all started agriculture programs in the
last ten years. One of Sierra Club’s program, Fair Table, supports a transition to
agricultural methods that maximize biodiversity and preserve natural resources. See Sierra
Club, Fair Table, SIERRA CLUB, http://www.sierraclub.org/fair-table (last accessed Feb.
27, 2017). For a comprehensive list of Sierra Club’s agriculture and food policies and
practice guidelines, see Sierra Club, Agriculture and Food, SIERRA CLUB,
http://www.sierraclub.org/policy/agriculture/food (Feb. 28, 2015).
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production workers labor in difficult, even deplorable,
conditions, and animals are produced as if they were widgets. It
would be hard to devise a more wasteful, damaging,
unsustainable system.”11 In that same newspaper, Michael
Pollan recently commented: “What ideas does Big Food have?
One, basically: ‘If you leave us alone and pay no attention to
how we do it, we can produce vast amounts of acceptable food
incredibly cheaply.’”12 Dan Barber, another leading food
movement voice, recently called monoculture reprehensible.13
According to the food movement narrative, industrial farming is
responsible for many of our food system’s ailments.14

Although the criticism is typically aimed at “big food,” it
often paints with a broad brush.15 This makes it easy for “big
food” advocates to characterize the food movement as anti-
farmer. As John Collison of the Oklahoma Farm Bureau,
explained, “We’re the ones that raise millions and millions of
animals every single day, and take care of them. They’re our
livelihood. We’re not going to treat our business badly.”16
During the 2012 Farm Bill reauthorization process, then-House
Agriculture Committee Chairman Congressman Frank Lucas, R-
Okla., echoed this sentiment in stating his opposition to coupling
conservation requirements to eligibility for crop insurance:
“Farmers and ranchers are the best possible stewards of their

11. Mark Bittman, A Food Manifesto for the Future, N.Y. TIMES (Feb. 1, 2011),
http://opinionator.blogs.nytimes.com/2011/02/01/a-food-manifesto-for-the-future/.
12. Michael Pollan, Big Food Strikes Back: Why did the Obamas Fail to Take on
Corporate Agriculture?, N.Y. TIMES (Oct. 5, 2016),
https://www.nytimes.com/interactive/2016/10/09/magazine/obama-administration-big-
food-policy.html?_r=0.
13. Author’s notes from the talk (Dec. 9, 2016). Monoculture is defined as “the
cultivation or growth of a single crop or organism especially on agricultural or forest land.”
Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/monoculture.
14. See, e.g., Wes Jackson, Letter in LETTERS TO A YOUNG FARMER: ON FOOD
FARMING, AND OUR FUTURE (MARTHA HODGKINS, ED. 2017) (describing the logic of
farming in an industrial society, focusing on yield, technology, and industrialization).
15. “Big food” refers to the highly concentrated segments of the food industry,
including food processors, distributors, and retailers.
16. Logan Layden, Oklahoma ‘Right to Farm’ Push About More Than Agricultural
Practices, KGOU (Feb. 26, 2015), http://kgou.org/post/oklahoma-right-farm-push-about-
more-agricultural-practices.
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land. They are already successfully using conservation practices
to protect our natural resources.”17 Given these defensive
responses to food movement rhetoric, it is not surprising many
farmers—only a very small percentage of whom could
reasonably be characterized as “big food” insiders18—find the
movement offensive.

The Trump administration has not only further politicized
this divide, but also has picked a side. The Trump-Pence
campaign adopted and sharpened the existing urban versus rural,
environment versus farmer, us versus them rhetoric, going so far
as to accuse the EPA of “doing all [it] can to take [farmers’]
land, [] profits, and [] livelihood.”19 A list of talking points,
obtained by Politico during the campaign, included the
following statements:

(cid:120) “The Trump-Pence Secretary of Agriculture will
defend American Agriculture against its critics,
particularly those who have never grown or
produced anything beyond a backyard tomato
plant.”

(cid:120) “The Trump-Pence administration will use the best
available science to determine appropriate

17. Press Release, House Committee on Agriculture, Lucas Applauds American
Farm Bureau’s Opposition to Linking Conservation Compliance to Crop Insurance (Oct. 9,
2013), http://agriculture.house.gov/news/documentsingle.aspx?DocumentID=1228. See
also Kip Tom, Food Tank Panel, https://www.youtube.com/watch?v=QR6ptMyh8FM,
(starting at 19:17: “Our family has been on the farm since 1837, and I’ve got 8 generations
behind me farming, and it is important to them to protect that resource as anybody, because
we want to have them for future generations.”)
18. USDA, Family Farms are the Focus of New Agriculture Census Data, (March
17, 2015), https://www.usda.gov/wps/portal/usda/usdahome?contentid=2015/03/0066.xml
(noting ninety-seven percent of farms are family owned).
19. Talking Points, Document on File with the Author. Perhaps the epitome of the
urban versus rural entrenchment is the post-election dialogue on such sites as Breitbart
News, minimizing the significance of the split between the electoral college and the
popular vote by pointing to the fact that Hillary Clinton won primarily in “elite coastal
counties” whereas Donald Trump won “by a landslide in the heartland.” Michael Patrick
Leahy, “Donald Trump Won 7.5 Million Popular Vote Landslide in the Heartland,”
Breitbart News (Nov. 15, 2016), http://www.breitbart.com/big
government/2016/11/15/donald-trump-won-7-5-million-popular-vote-landslide-
mainstream-america/.
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regulations for the food and agriculture sector;
agriculture will NOT be regulated based upon the
latest trend on social media.”20

(cid:120) “The Trump-Pence Administration will be an active
participant in writing a new and better Farm Bill
and delivering it on time! Our farmers deserve a
good farm bill written by those who are thankful for
our remarkable food system in this country.”21

These campaign positions suggest three things. First, they
reject the premise that our food system may be in need of
reform. Focusing on the metrics of food safety, food prices, and
production levels, our food system is indeed “remarkable.”22
Putting these metrics front and center makes it harder to justify
development of environmental and public health regulations,
which might undercut success along all of these metrics.23
Second, they advocate limiting decisionmaking to those
involved with food production. By narrowly defining the
stakeholders in the food and agriculture policy debate, this
language preferences certain kinds of issues—production costs
and regulatory burdens—over others, such as agricultural
externalities and food consumption-related concerns. Finally,
and relatedly, they prioritize “big food” interests. In addition to
the promise to protect development and use of biotechnology,
the talking points also promise to reduce corporate taxation
rates, a promise that holds value not for farmers, but for food
processors, distributors, retailers, and agriculture input
manufacturers.24

20. Although this talking point does not explicitly mention genetic engineering, it is
almost certainly intended to support that practice.
21. Talking Points for National Advisory Committee for Agriculture and Rural
Issues, Trump/Pence Campaign (document on file with author).
22. According to Wang, et al., Agricultural Productivity Growth in the United
States: Measurement, Trends, and Drivers, USDA Economic Research Report 189, 5 (July
2015), “U.S. Agricultural Output has more than doubled (up 156 percent) since 1948.”
23. But see Margot Pollans & Emily Broad Leib, Defining Food Safety for the 21st
Century (draft on file with author) (arguing that environmental protection is itself a critical
element of food safety).
24. Early Trump Administration policies have not been all good for “big food”;
immigration crack downs, shifts in trade policy, and proposed cuts to farm safety net
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These trends have continued into the early days of the
Trump Administration. It has delayed Obama-era consumer-
oriented laws such as restaurant menu-labeling requirements and
organic animal-welfare standards.25 Despite promises to support
farmers and prioritize rural economic development, the
administration has sought budget cuts for rural programs at
every opportunity,26 and the Secretary of Agriculture has
proposed restructuring the USDA to remove the Rural
Development Mission Area.27 It has also shown a propensity to
side with industry in nearly all of its policy positions, and so far
and agriculture is no different.28 It is not likely the Trump

programs including crop insurance all threaten the cheap inputs on which big food relies.
25. Interim Final Rule; Extension of Compliance Date, Food & Drug Admin., 82
Fed. Reg. 20,825 (May 4, 2017) (extending compliance deadline for menu nutrition labels
by one year); Final Rule; Delay of Effective Date, Agriculture Marketing Service, 82 Fed.
Reg. 9967 (Feb. 9, 2017) (delaying effective date of organic livestock and poultry rule by
six months to give agency additional time to consider the policy).
26. Helena Bottemiller Evich, “Ag Gets Dismissed by Trump Budget,” Politico
Morning Agriculture Report (May 24, 2017), http://www.politico.com/tipsheets/morning-
agriculture/2017/05/24/ag-gets-dismissed-by-trump-220482
(describing big cuts in President Trump’s proposed budget to USDA staff, supplemental
nutrition assistance, farmworker training, and nonpoint source pollution mitigation);
Helena Bottemiller Evich et al., “Trump Wants Cuts to USDA, FDA 2017 Funding,”
Politico Morning Agriculture Report (March 28, 2017),
http://www.politico.com/tipsheets/morning-agriculture/2017/03/trump-wants-cuts-to-usda-
fda-2017-funding-219458
(describing proposed cuts to rural business loan programs among others).
27. Nat’l Sustainable Agriculture Coalition, “USDA Trades Away Rural
Development,” NSAC Blog, (May 12, 2017),
http://sustainableagriculture.net/blog/trading-away-rural-development/
(arguing that eliminating the mission area is a “demotion”).
28. Take, as evidence of this thus far, President Trump’s nomination of Sonny
Perdue as Secretary of Agriculture. When Perdue served as Georgia’s governor, he
“supported factory farm expansion . . . and opposed air quality regulation.” Ricardo J.
Salvador & Nora Gilbert, Sonny Perdue Vows to Make American Agriculture Great
Again—but for Whom?, THE GUARDIAN (Jan. 29, 2017),
https://www.theguardian.com/sustainable-business/2017/jan/29/sonny-perdue-agriculture-
secretary-farming-american-agribusiness; . He has also expressed skepticism of climate
change. Id. Given his track record, it is not surprising that many industry groups have been
supportive of his nomination. Bartholomew Sullivan, Industry Groups Mostly Positive to
Perdue Nomination, USA TODAY, (Jan. 19, 2017),
http://www.usatoday.com/story/news/politics/2017/01/19/industry-groups-mostly-positive-
perdue-nomination/96795034/; Nikolai Kuznetsov, The Next Agriculture Secretary Could
Be Great for Agribusiness, FORBES, (Feb. 10, 2017),
http://www.forbes.com/sites/nikolaikuznetsov/2017/02/10/the-next-agriculture-secretary-
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administration will lead the charge to reframe the food and
farming debates towards recognition of the shared interested of
farmers and eaters.

Separated by political allegiances and public rhetoric,
neither farmers nor consumers are well positioned to facilitate
systemic change. While food movement advocates call on
farmers to select different crops and to change their farming
practices, these calls typically ignore or downplay the scope and
scale of transition costs. For a farmer shifting from one crop to
another, transaction costs might include significant capital
investment in different types of equipment and acquisition of
technical knowledge.29 Some transitions may take several
growing seasons, resulting in multiple years of lost profits.30
Adoption of more environmentally-friendly farming practices
might also require new spending, such as capital investment or
retraining, or result in lost profit associated with practices such
as fallowing fields. Many farmers are hesitant to shift to new
crops because they may lack viable access to markets for those
new crops.31 Many farmers also enter into production contracts
with aggregators, processors and retailers.32 These contracts
often “create pressures on producers to deliver standardized

could-be-great-for-agribusinesses/#52e5e4c31e79.
29. Joysee M. Rodriguez, et al., Barriers to Adoption of Sustainable Agriculture
Practices: Change Agent Perspectives, 24 RENEWABLE AGRIC. & FOOD SYSTEMS 60, 61-
62 (2009) (cataloguing various barriers to transition).
30. Id.
31. Tamar Haspel, Monocrops: They’re A Problem, But Farmers Aren’t The Ones
Who Can Solve It, WASH. POST, (May 9, 2014),
https://www.washingtonpost.com/lifestyle/food/monocrops-theyre-a-problem-but-farmers-
arent-the-ones-who-can-solve-it/2014/05/09/8bfc186e-d6f8-11e3-8a78-
8fe50322a72c_story.html?utm_term=.e62976916d98 (last visited Feb. 9, 2017);
Committee on Twenty-First Century Systems Agriculture, Toward Sustainable
Agricultural Systems in the 21st Century, NATIONAL RESEARCH COUNCIL 271-74 (2010),
http://www.nap.edu/catalog/12832/toward-sustainable-agricultural-systems-in-the-21st-
century (describing how consolidation in food processing and retail may hinder access to
markets and transitions to sustainability on farms).
32. See, e.g., Christopher R. Kelley, Agricultural Production Contracts: Drafting
Considerations, 18 HAMLINE L. REV. 397 (1995); James MacDonald, Trends in
Agricultural Contracts, 30(3) CHOICES 1, 3 (2015) (production contracts cover about 35%
of all agricultural products by value); James MacDonald et al., Contracts, Markets, and
Prices: Organizing the Production and Use of Agricultural Commodities, Econ. Res. Serv.
Agric. Econ. Rep. No. 837, v (Nov. 2004).
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products and varieties to meet specified standards.”33 To meet
those standards, farmers are sometimes “force[d] . . . to use
production practices . . . that might not be suited to local
ecological conditions.”34 As a result, such contracts “might
create disincentives for the use of some farming practices that
could enhance sustainability.”35

Exacerbating these structural barriers is the fact that
farming is a tough business. Farm income is highly volatile.36 A
large percentage of farm households supplement farm income
with off-farm income; average farm income represents only 15%
of farm household income.37 Even among farms with gross sales
over $250,000, which account for 82% of value of U.S. farm
production, off-farm income represents 25% of total household
income.38 Both small and medium-sized farms—which
constitute the vast majority of farms—often operate at very low
or negative profit margins.39 For these farms even small
regulatory burdens can be the difference between economic
viability and failure.40 Low operating profit margins are a barrier

33. Committee on Twenty-First Century Systems Agriculture, supra note 31, at 275.
34. Id.
35. Id.
36. Nigel Key, Daniel Prager, & Christopher Burns, “Farm Households Experience
High Levels of Income Volatility,” Amber Waves (Feb. 22, 2017),
https://www.ers.usda.gov/amber-waves/2017/januaryfebruary/farm-households-
experience-high-levels-of-income-volatility/ (finding that income on commercial farms
grossing over $350,000 fluctuated within a range of $110,000 between 1999 and 2004).
Median household income on farms was $76,725 in 2015. Principal farm operator
household finances, by ERS farm typology, 2015,
https://www.ers.usda.gov/webdocs/DataFiles/Farm_Household_Income_and_Characteristi
cs__17977/table02.xls?v=42704. But household income of farm families exceeds
household income of non-farm families most of the time. Dept. of Agric., Envtl. and Dev.
Econs., Farm Policy Background: Income of U.S. Farm vs. Nonfarm Population,
FARMDOCDAILY (July 3, 2013), http://farmdocdaily.illinois.edu/pdf/fdd030713.pdf
37. Id. “While not commonly discussed, it appears that an important prerequisite for
farming in the 21st Century in the U.S. is to have a second (or more) source of income not
from the farm. Nonfarm income not only increases total household income but also is an
important risk management strategy.” Id.
38. Id. On these farms, average household income is $205,215.
39. 41.6 % of midsize farms, with gross cash farm income between $350,000 and
$999,999, operate in the profit margin “critical zone.” Robert Hoppe, Profit Margin
Increases with Farm Size, AMBER WAVES (Feb. 2, 2015), For various types of small farms,
the number ranges from 55.8% to 76.2%.. Id.
40. U.S. FOOD & DRUG ADMIN., ANALYSIS OF ECONOMIC IMPACTS—